Cummings v. Worcester, L. & S. St. R.

• Decision Date: 23 May 1896
• Citation: 166 Mass. 220,44 N.E. 126
• Parties: CUMMINGS v. WORCESTER, L. & S. ST. RY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

166 Mass. 220

44 N.E. 126

CUMMINGS v. WORCESTER, L. & S. ST. RY.

Supreme Judicial Court of Massachusetts, Bristol.

May 23, 1896

COUNSEL

J.W. Cummings and E. Higginson, for plaintiff.

Jennings & Morton, for defendant.

OPINION

BARKER J.

The plaintiff was a passenger, riding, in the daytime, upon the front platform or steps of a closed street car, moving four miles an hour. His head struck a post standing about three feet from the nearer rail of the car track, and visible from the car for a quarter of a mile as the car approached. There was a conflict of evidence as to how the accident happened. The plaintiff's evidence tended to show that he was facing the platform, and was standing with one foot on the step and the other foot on the platform, his left hand holding the body rail of the car, and his right hand holding the dasher rail; that he happened to turn his head in the direction in which he was going, and was instantly struck in the face by the post. On the other hand, the defendant's evidence tended to show that he was facing the street, with both feet on the lower step, his left hand on the dasher rail, and his right hand on the body rail, and that he was intentionally and deliberately leaning out beyond the car and looking back in the direction opposite to that in which the car was going.

The instructions requested by the plaintiff were: (1) "Even though the jury find that the plaintiff was facing out towards the street at the time of the accident, it cannot be ruled, as matter of law, that he was negligent in so doing." (2) "If the jury find that the plaintiff at the time of the accident, was looking back, they cannot condemn his act as negligent, unless they find it was such an act as a reasonably prudent man under like circumstances would not have done." The presiding justice, after giving instructions upon care and negligence, to be applied in considering the question whether the plaintiff was in the exercise of due care, read to the jury the plaintiff's first request, and stated that he had substantially given it to the jury. He then read to the jury the second request, and stated that he had given it with a qualification, which he stated, and that he now gave that request to the jury in connection with a distinction which he went on to explain. The only exception taken was to a specific part of the charge, and to the charge in so far as it was inconsistent with the requests. If the bill of exceptions can be construed to show a refusal to give the two requests, no exception was taken to that refusal, and the requests are material only as showing the extent of the plaintiff's exceptions to the charge itself.

The charge, after explaining correctly the general rules applicable to questions of due care in the case of a passenger riding upon the platform of a street car, stated the conflict of testimony as to how the accident occurred and then continued: "Suppose he was standing upon the step of the car in the way in which he says he was, and suppose that, as the car proceeded upon its way, he leaned out, with his head slightly projecting, or his body even beyond the line of the car; what would be the effect of that upon his right to recover here? It would be for you to say, as a matter of fact, whether it was negligent or not for him to do that thing. The general question whether or not it was negligent for him to be there at all, in that position, in that place, is a question for you. If there was, upon his part, a casual, momentary leaning out, or turning of the head, such as would be incident to an effort to secure a more comfortable or safer position upon the car, that would...